187 U.S.

429
23 S.Ct. 211
47 L.Ed. 245

MEXICAN CENTRAL RAILWAY COMPANY, Limited, Plff.

in Err.,
v.
J. W. ECKMAN, Guardian of Alfonso Huesselmann.
No. 124.
Submitted December 17, 1902.
Decided January 5, 1903.

This was an action brought in the circuit court of the United States for the
western district of Texas by J. W. Eckman, a citizen and resident of that
district, as guardian of Alfonso Huesselmann, a minor, against the
Mexican Central Railway Company, a corporation of Massachusetts, to
recover damages for injuries sustained by him in the Republic of Mexico
through the negligence of the company, in whose employment he then
was. The complaint set out certain sections of the Constitution, of the
Penal and Civil Codes, and acts of Congress and regulations thereunder,
of Mexico, and averred that, 'by virtue of the general principles of right
and justice, and by virtue of the laws of Mexico hereinbefore set forth,'
plaintiff had a right of action in Mexico, and that the same existed in the
United States; and also that the acts of negligence complained of were
wrongful and actionable in the United States and in the state of Texas, as
well as in the Republic of Mexico. Defendant filed a plea in abatement to
the effect that Huesselmann was not then, or at the time of the infliction of
the injuries, a citizen or resident of the state of Texas, but that he and his
parents were citizens and residents of the state of Illinois; and that
defendant was a resident and citizen of Massachusetts, and had not waived
its right to be sued there, which right it pleaded, and asked that the action
be dismissed. The plea was overruled, and defendant filed an answer
containing seven exceptions or pleas to the jurisdiction, an exception to
the complaint for insufficiency, and a general denial. All of the pleas were
overruled, and the case was tried before a jury, a verdict rendered in
plaintiff's favor, and judgment entered thereon. Thereupon a writ of error
was allowed from this court on a certificate that the following questions of
jurisdiction arose:

'First. That Alfonso Huesselmann, at the time of the filing of this suit and
now being a minor under twenty-one years of age, and his father and
mother both being now alive, and at the time of the filing of this suit and
now being residents, citizens, and inhabitants of the state of Illinois, and
never having been residents, citizens, and inhabitants of the state of Texas,
nor the western district of Texas, and the defendant, the Mexican Central
Railway Company, Limited, being incorporated under and by virtue of the
laws of the state of Massachusetts, and at the time of the filing of this suit,
and now, being a resident, inhabitant, and citizen of said state of
Massachusetts, and never having been incorporated under the laws of the
state of Texas, and was not at the time of the filing of this suit a resident,
inhabitant, or citizen of the state of Texas or of the western district of
Texas; that said J. W. Eckman, being guardian of the person and estate of
said Alfonso Huesselmann at the time of the filing of this suit, and being
such now, and being a resident, inhabitant, and citizen of the state of
Texas and of the western district of Texas, now, and at the time of the
filing of this suit; has this court jurisdiction to try said cause, and does the
citizenship of said guardian, J. W. Eckman, confer jurisdiction on this
court, or does the citizenship of the minor and his parents control so as to
defeat the jurisdiction of this court?

'Second. Whether or not this court has jurisdiction to try and determine said
suit, where the minor, Alfonso Huesselmann, and defendant, Mexican Central
Railway Company, Limited, are not citizens of this state and district, and where
the cause of action arose in the Republic of Mexico, in which republic the
contract of service was made and the services thereby contemplated were to be
performed?

'Third. Whether or not this court has jurisdiction to try and determine this suit
under the laws of Mexico as pleaded and proved in this case, in so far as such
laws give rights that are to be determined by successive suits, give the right to
extraordinary indemnity, considering the social position of the injured party,
and in so far as the same are vague, indefinite, and dissimilar to the laws of our
country and contrary to our policy?

'Fourth. Where plaintiff's cause of action arose in the Republic of Mexico, and
the rights are to be determined by the laws of said republic, and where
defendant has continuously kept its property and operated its road in said
republic, has this court jurisdiction to hear and determine this cause in the
absence of any reason shown in the pleading or proof why plaintiff did not
bring his suit in the Republic of Mexico?

'Fifth. Where, according to the laws of the Republic of Mexico, no civil liability
exists unless the acts that give rise to the civil liability must be found to be a
violation of the criminal laws of Mexico, is the enforcement of such liability
penal in its nature, and can this court determine the guilt of defendant
thereunder, and adjudicate the rights of the parties based upon the criminal laws
of said republic?'

Messrs. A. B. Browne, Alex. Brittor, and Eben Richards for plaintiff in error.

Mr. Millard Patterson for defendant in error.

Mr. Chief Justice Fuller delivered the opinion of the court:

This case is brought directly from the circuit court to this court under the 1st
subdivision of the 5th section of the judiciary act of March 3, 1891 [26 Stat. at
L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549], providing that that may be
done 'in any case in which the jurisdiction of the court is in issue; in such cases
the question of jurisdiction alone shall be certified to the Supreme Court from
the court below for decision.' It must be regarded as settled that the jurisdiction
here referred to is the jurisdiction of the circuit or district courts of the United
States as such (Smith v. McKay, 161 U. S. 355, 40 L. ed. 731, 16 Sup. Ct. Rep.
490; Blythe v. Hinckley, 173 U. S. 501, 43 L. ed. 483, 19 Sup. Ct. Rep. 497);
that the whole case is not open to us, but only the question of jurisdiction
(Horner v. United States, 143 U. S. 570, 576, 36 L. ed. 266, 12 Sup. Ct. Rep.
522; United States v. Jahn, 155 U. S. 112, 39 L. ed. 89, 15 Sup. Ct. Rep. 39);
and that review by certificate is limited to the certificates by the circuit or
district courts, made after final judgment, of questions made as to their own
jurisdiction, and to the certificates by the circuit court of appeals of questions of
law in relation to which the advice of this court is sought as therein provided.
United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983.

Defendant's counsel condenses the propositions relied on into these: (1) That
'the citizenship of the ward, the actual plaintiff, not that of the guardian, the
nominal plaintiff, controls;' (2) that 'the laws of Mexico as pleaded and proved,
and which are relied on to support this case, are so vague and indefinite, and so
dissimilar to the laws of Texas, as to be incapable of enforcement in our courts,
and are inconsistent with the statutes and public policy of Texas;' and (3) that
these laws 'are penal in their character, and such as should be given no extraterritorial effect.'

10

But, apart from the question of jurisdiction in respect of ctiizenship, it is

apparent that the jurisdiction of the circuit court as a court of the United States
was not put in issue, for the other contentions were matters on the merits, and
this judgment to the contrary is not void, but is only open to be attacked for
error, while, in any aspect, the objections applied to all courts of this country,
and not particularly to the Federal courts.
11

And if the jurisdiction of the circuit court was invoked solely on the ground of
diverse citizenship, the case should have been taken to the circuit court of
appeals for the fifth circuit, to which court previous similar cases have been
carried, and by which the questions suggested here have been dealt with. Evey
v. Mexican C. R. Co. 38 L. R. A. 387, 26 C. C. A. 407, 52 U. S. App. 118, 81
Fed. 294; Mexican C. R. Co. v. Marshall, 34 C. C. A. 133, 91 Fed. 933.

12

These matters, however, are not properly before us in this case, and we intimate
no opinion upon them.

13

The question for us to determine is whether the jurisdiction of the circuit court
can be sustained through the citizenship of the guardian.

14

It is admitted that Eckman was duly appointed guardian of both the person and
estate of Huesselmann by the proper court of Texas thereto empowered, and
that he was a citizen and resident of the western district of Texas.

15

Under the act of March 3, 1887, 24 Stat. at L. 552, chap. 373, as corrected by
that of August 13, 1888, 25 Stat. at L. 433, chap. 866,1 actions may be brought
in any district in which either the plaintiff or the defendant resides. We have
held that a corporation incorporated in one state only cannot be compelled to
answer in a circuit court of the United States held in another state, to a civil suit,
at law or in equity, brought by a citizen of a different state. Shaw v. Quincy
Min. Co. 145 U. S. 444, sub nom. Ex parte Shaw, 36 L. ed. 768, 12 Sup. Ct.
Rep. 935. But that is not this case, as here the action was brought by a citizen
of Texas in the district of his residence.

16

The question is whether under the laws of Texas a guardian can sue in his own
name to recover damages for injuries sustained by the ward, and it is unaffected
by the permanent domicil of the ward. Hoyt v. Sprague, 103 U. S. 613, 26 L.
ed. 585; New Orleans v. Gaines, 138 U. S. 595, 606, sub nom. New Orleans v.
Whitney, 34 L. ed. 1102, 1106, 11 Sup. Ct. Rep. 428, 431; Delaware County v.
Diebold Safe & Lock Co. 133 U. S. 473, 488, 33 L. ed. 674, 680, 10 Sup. Ct.
Rep. 399.

17

It is true that where a state or one of its officials is a mere figurehead, a nominal
party, to a suit on a sheriff's or administrator's bond, or an action is instituted in
the name of a United States marshal on an attachment bond, the real party in
interest is taken into account on the question of citizenship, notwithstanding the
general rule that the jurisdiction of the Federal courts depends, not on the
relative situation of the parties concerned in interest, but on the relative
situation of the parties named in the record. But those are instances of merely
formal parties, whose names are used from necessity, and, as said in New
Orleans v. Gaines, by Mr. Justice Bradley, 'we have repeatedly held that
representatives may stand upon their own citizenship in the Federal courts
irrespectively of the citizenship of the persons whom they represent,such as
executors, administrators, guardians, trustees, receivers, etc. The evil which the
law was intended to obviate was the voluntary creation of Federal jurisdiction
by simulated assignments. But assignments by operation of law, creating legal
representatives, are not within the mischief or reason of the law.'

18

If in the state of the forum the general guardian has the right to bring suit in his
own name as such guardian, and does so, he is to be treated as the party
plaintiff so far as Federal jurisdiction is concerned, even though suit might have
been instituted in the name of the ward by guardian ad litem or next friend. He
is liable for costs in the event of failure to recover and for attorneys' fees to
those he employs to bring the suit, and in the event of success, the amount
recovered must be held for disposal according to law, and if he does not pay the
same over to the parties entitled, he would be liable therefor on his official
bond.
The Revised Statutes of Texas provide:

19

'Art. 2623. The guardian of the estate is entitled to the possession and
management of all property belonging to the ward; to collect all debts, rents, or
claims due such ward; to enforce all obligations in his fayor; to bring and
defend suits by or against him; but in the management of the estate the guardian
shall be governed by the provisions of this title.

20

'Art. 2624. The guardian of both person and estate has all the rights and powers,
and shall perform all the duties, of the guardian of the person and of the
guardian of the estate.'

21

'Art. 2627. The guardian of the estate shall use due diligence to collect all
claims or debts owing to the ward, and to recover possession of all property to
which the ward has a title or claim; provided, there is a reasonable prospect of

collecting such claims or debts, or of recovering such property; and if he

neglects to use such diligence he and his sureties shall be liable for all damages
occasioned by such neglect.'
22

In Roberts v. Sacra, 38 Tex. 580, it was ruled that the guardian for minor heirs
might sue in his own name on a promissory note payable to the ancestor of his
wards on showing that they were the only heirs of the payee, and that there was
no administration on the estate.

23

In Houston %& t. c. r. c/o. v. Bradley, 45 Tex. 171, 176, it was held that under
a law authorizing suit for death by wrongful act, which provided that actions
thereunder should be 'for the sole and exclusive benefit of the surviving
husband, wife, child, or children, and parents of the person whose death shall
have been so caused, and may be brought by such entitled parties, or any of
them,' the suit might properly be brought in his own name by the guardian of
the estate of minor children of the person whose death was caused by such act;
and the court said: 'It is not regarded as material whether the suit is brought in
the name of the guardian for his ward or in the name of the ward by his
guardian. By the laws of Texas, the guardian of the person is entitled to the
charge and control of the person of the ward, and the guardian of the estate is
entitled to the possession and management of the property belonging to the
ward, and to collect all claims and debts due him, to enforce all obligations in
his favor, and to bring and defend suits by or against him.'

24

And see March v. Walker, 48 Tex. 372, where Walker sued as guardian of one
of three children, and as next friend of the two others, and attention was called
in respect of the two to the then statute, subsequently repealed, providing for
the appointment of a special guardian to prosecute suits; and Gulf, C. & S. F. R.
Co. v. Styron, 66 Tex. 421, 1 S. W. 161, in which the action had been brought
'by W. W. Styron, next friend of Millie Styron, a minor,' and it was decided that
it was not necessary 'that the pleadings must show, in so many words, that the
action is brought by the minor by next friend,' although cases so ruling could be
found.

25

We are unable to hold that the circuit court erred in assuming that this guardian
had the legal right to bring the action in his own name, and it is on his
citizenship, and not on the citizenship of the ward, that the jurisdiction of the
circuit court depended.

26

Judgment affirmed.

U. S. Comp. St. 1901, p. 508.